In theory, legislation to enforce a prosecutor’s obligation to disclose exculpatory material to the accused should not be necessary. Although a series of U.S. Supreme Court cases have outlined a prosecutor’s legal obligation to disclose evidence favorable to the accused where the evidence is material either to guilt or punishment, in practice some prosecutors continue to violate the due process rights of defendants by failing to adhere to both their legal and ethical disclosure duties. In recent years, the prosecution, conviction, and ultimate exoneration of U.S. Ted Stevens case is the most publicized example of a federal prosecution marred by violations of prosecutorial discovery obligations. Subsequent to his conviction, an investigation revealed that some prosecutors engaged in systematic concealment of significant exculpatory evidence.

Most commentators agree that part of the discovery problem lies in the “materiality” requirement for disclosure, which the Court has defined as evidence reasonably probable to changes the results of the proceeding. Taken literally, a prosecutor could read this materiality standard to mean that unless the prosecutor believes that the evidence may lead to a not guilty verdict, it is not material. Because the prosecutor is convinced of the accused’s guilt, it is unlikely that she will believe that anything in her files is exculpatory evidence sufficient to undermine confidence in the outcome of the case.

In response to the prosecution of Senator Stevens Senator Lisa Murkowski proposed the “Fairness in Disclosure of Evidence Act of 2012,” which would require a federal prosecutor to disclose all favorable information to the accused. By removing the materiality requirement and requiring the disclosure of favorable information and not just evidence, the proposed law would expand a prosecutor’s legal disclosure obligation and address a major problem with the current disclosure standard.

At a Senate Judiciary Committee hearing considering the proposed legislation, Deputy Attorney General James Cole testified that while what occurred in the prosecution of Senator Stevens was unacceptable it was not indicative of a systemic problem. According to Cole, whatever problem there may be is not a problem about the scope of discovery but rather one of making sure prosecutors understand and comply with their existing discovery obligations. He emphasized several steps that the DOJ was taking to enhance the training, guidance, and supervision of its prosecutors and argued that these steps would be more effective than the proposed legislation. In contrast to Cole’s testimony, commentators, the American Bar Association, a survey of federal judges, and data from exonerations and appeals all support suggest that there is a discovery problem at both the federal and state levels.

Against this backdrop, this Article explores the issue of prosecutorial non-compliance with disclosure obligations from the perspective of whether there is a discovery problem, and, if so, whether federal and state legislation could be a viable solution. This Article analyzes whether, contrary to the DOJ’s position, there is evidence of a discovery problem at the federal and state levels. Next, this Article explores several underlying factors that create conditions that may lead some prosecutors not to comply with current discovery obligations in federal and state jurisdictions. Finally, the Article analyzes whether legislation is a possible solution to the problem.